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Thursday, March 19, 2009

Varun Gandhi's hate-speech and the law

Varun Gandhi's hate speech has been delivered under peculiar circumstances, and the EC is confronted with a new situation. He is yet to secure his party's nomination as a candidate for the Pilibhit Lok Sabha constituency. The very registration of a case against him, prior to his filing nomination papers,(if at all the BJP gives him a ticket) cannot be a factor for rejecting his nomination by the Returning Officer. Moreover, relief under RPA will be availabe to a losing candidate only after the election is over.

Varun Gandhi made his controversial speech after the Model Code of Conduct has come into force. Therefore, if the EC concludes that he has violated the Model Code of Conduct, then the Returning Officer will have valid reasons to reject his nomination under Section 36(6) of RPA.

However, a difficulty will still remain. The Model Code of Conduct (MCC) is for the guidance of political parties and candidates. The EC had taken stringent action, including postponement and annulment of election, on the ground of violation of MCC by the parties or candidates. Thus rejection of his nomination on this ground would be a valid exercise of EC's and R.O.'s powers. The EC has wide powers to enforce the MCC, even though it does not have statutory backing.

But Varun Gandhi was not a candidate when he allegedly made that hate speech, even if his speech comes within the mischief of Clauses (1) and (3)of Item 1 of the MCC, which says there shall be no appeal to caste or communal feelings for securing votes. One hopes that the E.C. will not let him exploit this loophole, but give a broader interpretation to the MCC. He should be deemed as a candidate when he made that offensive speech, as his party is already bound to follow the MCC, and to require its members to observe the MCC in letter and spirit. If the EC’s rejection of his nomination is challenged in a court, it can be a test case.

Having said this, I must point out a minor flaw in Vinay Sitapati’s well-written piece (Frame by frame) arguing for punishment for Varun Gandhi. He has written that no election has ever been invalidated because the winner made communal speeches. There is at least one. In Suryakant Venkatrao Mahadik’s case, the SC set aside his election on this ground. The judgment is worth reading. ADDENDAIn Dr.Ramesh Yashwant Prabhoo's case, which Vinay refers to in his piece, Prabhoo's election was declared void, because he was found to have given his implied consent to Bal Thackeray's hate speech. The E.C. recommended Prabhoo's disqualification for a period of six years from the date of the Supreme Court's order, viz., 11.12.1995, even though Prabhoo had completed two terms as M.L.A. after the by-election in December 1987 in which he had impliedly consented to Thackeray's hate speech.

Is there a possibility of reading "candidature" as going back to cover all acts from the date on which MCC comes into force, or should it be read so as to cover only acts after "nomination"? At the same time not being covered under "ex post facto" problem?

Well, the Election Commission is starved of any legal authority to refuse nomination, if only presented under Section 33 of the Act, of Varun Gandhi.

Where is any authority conferred under Section 36(6) of 'The Representation of The People Act, 1951' in regard to a power to the Returning Officer to reject in the manner stated in this post?

Section 36(6) says:"The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection."

Where is any mention in the above provision to authorise a 'Returning Officer' to refuse to accept a Nomination from a suspect candidate? Section 36 only deals with 'Scrutiny' of Nominations. It is not a source of power to a Returning Officer to decline to accept a Nomination from a suspect candidate on grounds other than those enumerated therein or enumerated in Statues referred to therein. So, Section 36 itself lays down the grounds that must furnish the basis for 'scrutiny'.

There is none to support a view that the Returning Officer may refuse to accept Varun Gandhi’s speculated Nomination.

If a person engages in a 'hate speech' in a forum that is deemed to be an election conduct by the Election Commission, the Election Laws in force in the Country do not afford any remedy to any person other than one who is authorised to present an Election Petition under Section 80 of the Representation of People Act, 1951.

Now, who is a person authorised to present an Election Petition under Section 80 of the Act? That question is answered by Section 81 which says that 'it could be any candidate or any elector with respect to the election the outcome of which is under dispute'.

The Election Commission is not a secondary police in this country and they should not be expected to take on police powers not entrusted to them by the law. What is the Uttar Pradesh police doing there? If Varun Gandhi indeed said things that are attributed to him, he commits offences under the Indian Penal Code, the enforcement of which is not entrusted to the Election Commission but to the jurisdictional police.

Police action is a different remedy altogether. I think one important part of this process, should be to create disincentive to engage in hate speech, or anything similar by limited disenfranchisement or participation in the process. It is public knowledge that criminal law takes its own time, and in that sense does not effectively deal with such situation.

Electoral Accountability is distinct from accountability under criminal law.

I agree with some of the comments that the EC or the R.O. does not have the power reject his nomination, even if he was found violating the MCC, because the RPA does not enable it to do so.

But I understand the EC's power to enforce the MCC with the help of the Symbols Order. If the EC finds an aspirant guilty of violating MCC, then it could direct the political party which has declared his candidature, not to field him or give him the ticket. If the political party defies the directive, then it faces the consequences under the Symbols Order, that is, derecognition. This should act as a deterrent not to field someone who has been indicted by the E.C.

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